Two Ohio men and Youngtown Company are indicted for violating the clean water act

FOR IMMEDIATE RELEASE

Feb. 28, 2013

A federal grand jury returned an indictment charging two Ohio men and a Youngstown-based company each with one count of violating the Clean Water Act, said Steven M. Dettelbach, the United States Attorney for the Northern District of Ohio.

Benedict W. Lupo, 62, of Poland, Ohio, Michael L. Guesman, 34, of Cortland, Ohio, and Hardrock Excavating LLC are each accused of illegally discharging brine and oil-based drilling mud into a stormwater drain on numerous occasions. The drain flowed into an unnamed tributary of the Mahoning River and ultimately into the Mahoning River, according to the indictment.

The conduct took place between Nov. 1, 2012 and Jan. 31, 2013, according to the indictment.
“Clean, fresh water is our greatest resource in Northern Ohio,” Dettelbach said said “We will aggressively investigate and prosecute cases in which people pollute Ohio’s streams, rivers and lakes.”

“We will continue to assist in the federal prosecution of this case but we will also pursue with the Ohio Department of Natural Resources any other violations of Ohio’s environmental protection laws,” said Ohio Attorney General Mike DeWine. “This case is a reminder that we should look at making state law equal to federal law when it comes to protecting the waters of Ohio.”

ODNR Director Jim Zehringer said: “As an agency that focuses strongly on protecting Ohio’s natural resources, ODNR takes illegal dumping of oilfield waste into Ohio waters very seriously, and this type of action will not be tolerated. We will continue to work with our local, state and federal partners to take swift and severe action when someone willingly–and with malice–decides that their private interests outweigh the rules and laws that serve the public and keep our environment safe.”

“This incident is very disappointing and one of a small percentage of egregious environmental violations we see at Ohio EPA that must be prosecuted criminally,” Ohio EPA Director Scott Nally said. “In this particular case, the evidence suggests multiple instances of deceptive and illegal conduct, without regard to human health and the environment. This general disregard for the law will not be tolerated in Ohio and we will work with our partners at the local, state and federal agencies to make sure the responsible parties are held accountable. ”

“As the nation increases its use of natural gas, exploration companies must ensure that the waste water resulting from the drilling process is treated and disposed of safely and legally,” said Randall Ashe, Special Agent in Charge of EPA’s criminal enforcement program in Ohio. “These defendants are alleged to have knowingly and repeatedly discharged stored brine and oil-based drilling mud into a stormwater drain which ultimately flowed into the Mahoning River. This case demonstrates that if companies and their senior managers try to save money by circumventing environmental laws, they will be vigorously prosecuted.”

According to the indictment and related court documents:

Hardrock Excavating LLC is owned by Lupo and located at 2761 Salt Springs Road in Youngstown. The company provides services to the oil and gas industry in Ohio and Pennsylvania, including the storage of brine and oil-based drilling mud. There are approximately 58 mobile storage tanks at the facility and each holds approximately 20,000 gallons.

Lupo, who owns Hardrock, directed employee Guesman to empty some of the waste liquid stored at the facility into a nearby wastewater drain on or about Nov. 1, 2012, according to the indictment.

Lupo directed Guesman to conduct this activity only after no one else was at the facility and only after dark, according to the indictment.

Guesman, at the direction of Lupo, emptied some of the waste liquid at the facility into the nearby stormwater drain using a hose on numerous occasions over the next several months, according to the indictment.

The last time Guesman emptied some of the waste liquid into the drain was on or about Jan. 31, 2013. The waste liquid that night included a mixture of brine and oil-based drilling mud. A sample of the discharge taken that night was black in color and a subsequent analysis showed the presence of several hazardous pollutants, including benzene and toluene, according to the indictment.

This case is being prosecuted by Special Assistant U.S. Attorney Brad Beeson following an investigation by the Ohio EPA, Ohio Department of Natural Resources, U.S. EPA, the Ohio Bureau of Criminal Investigation, the Youngstown Department of Public Works and the Youngstown Fire Department.

The statutory maximum for violating the Clean Water Act is for individuals is three years in prison, one year of supervised release and a fine of $50,000 per day of violation or $250,000, whichever is larger. For corporations, the statutory maximum is five years of probation and a fine of $50,000 per day of violation or $500,000, whichever is larger.

If convicted, the defendant’s sentence will be determined by the court after review of factors unique to this case, including the defendant’s prior criminal record (if any), the defendant’s role in the offenses and the characteristics of the violations. In all cases, the sentences will not exceed the statutory maximum and in most cases they will be less than the maximum.

An indictment only a charge and is not evidence of guilt. A defendant is entitled to a fair trial in which it will be the government’s burden to prove guilt beyond a reasonable doubt.